R. Vijayan vs Baby - 2011 Supreme(Raj) 1015

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2011 Supreme(Raj) 1015

[Citation : 2012(2) RLW 1476 (SC)]
(Supreme Court)
R. Vijayan Vs. Baby & Anr. (Raveendran, J.)
HON'BLE R.V. RAVEENDRAN, J.
HON'BLE R.M. LODHA, J.
R. Vijayan
Versus
Baby & Anr.
Criminal Appeal No. 1902 of 2011, decided on 11.10.2011

Advocates Appeared
C.K. Sasi, for Appellant;
G. Prakash, for Respondents

Headnote:Negotiable Instruments Act, 1881, Sec. 138, 143 read with Cr.P.C., 1973, Sec. 29 and 357 — Compensation in case of dishonour of cheque — Sec. 29 and 357 of the Code and Sec. 138 of the Act, should be read harmoniously and complementary to each other — Either Compensation or fine be awarded — Complaint u/Sec. 138 of the Act is in regard to criminal liability and not for thee recovery of the cheque amount — Held — Suggested — Amendments to provisions of chapter XVII so that in all cases of conviction, there should be a consequential levy of fine of an amount sufficient to cover the cheque amount and interest thereon at a fixed rate of 9% per annum interest, followed by award of such sum as compensation from the fine amount.
       Appeal dismissed. (Paras 16 to 18)
       ijØkE; fy[kr vf/kfu;e] 1881] /kkjk 138] 143 lifBr na-iz-la-] 1973] /kkjk 29 ,oa 357 & pSd vuknj.k ds ekeys esa izfrdj & lafgrk dh /kkjk 28 ,oa 357 rFkk vf/kfu;e dh /kkjk 138 dk iBu ,d nwljs ds lkFk lkSgknZiw.kZ ,oa vuqiwjd ds :i esa fd;k tkuk pkfg;s & ;k rks izfrdj ;k tqekZuk fn;k tkos & vf/kfu;e dh /kkjk 138 ds rgr ifjokn QkStnkjh nkf;Ro ds lEcU/k esa gS u fd pSd dh jkf'k dh olwyh gsrq & vfHkfu/kkZfjr & v/;k; XVII ds izko/kkuksa esa la'kks/ku ds lq>ko fn;s x;s rkfd nks"kflf) ds lHkh ekeyksa esa pSd dh jkf'k vkSj ml ij 9% okf"kZd dh fu;r nj ij C;kt vko`r djus gsrq i;kZIr jkf'k ds tqekZus dk ifj.kkfed vf/kjksi.k gksuk pkfg;s vkSj mlds i'pkr~,slh jkf'k dk ,okMZ tqekZusa dh jkf'k esa ls izfrdj ds :i esa gksuk pkfg;sA ¼in la[;k 16 ls 18½
       vihy [kkfjt dhA

Judgement Key Points

In cheque dishonour cases under Section 138 of the Negotiable Instruments Act, Sections 29 and 357 of the CrPC and Section 138 of the Act must be read harmoniously and complementarily; either compensation or fine may be awarded, but not both under Section 357(3) when fine forms part of the sentence. [17000445120003][17000445120006][17000445120008]
Compensation under Section 357(3) CrPC can only be awarded when the sentence does not include a fine, as it applies to cases of imprisonment alone where loss or injury has occurred. (!) (!) [17000445120006][17000445120008]
When fine is imposed, compensation may be directed from the fine recovered under Section 357(1)(b) CrPC for loss or injury recoverable in a civil court. (!) (!) [17000445120008]
A First Class Magistrate's fine limit under Section 29(2) CrPC was Rs.5,000 at the relevant time, restricting ability to levy higher fine for compensation equal to cheque amount (up to twice under Section 138 NI Act). [17000445120004][17000445120009]
Section 143 NI Act (post-2003) overrides Section 29(2) CrPC ceiling, allowing First Class Magistrates to impose fines exceeding Rs.5,000 up to twice the cheque amount in summary trials. [17000445120011]
Courts in Section 138 convictions should uniformly levy fine up to twice the cheque amount (considering 9% p.a. simple interest as reasonable loss) and direct payment as compensation under Section 357(1)(b) CrPC, absent special circumstances, for uniformity and credibility. [17000445120015][17000445120016]
Chapter XVII NI Act blurs civil-criminal lines, aiming at punishment and restitution; complaints focus on criminal liability, not recovery, but courts typically direct cheque amount as compensation from fine or enable compounding. [17000445120013][17000445120014]
Suggested amendment to Chapter XVII: Mandatory fine on conviction sufficient for cheque amount plus 9% p.a. interest, awarded as compensation, to ensure uniformity, avoid multiple proceedings, and enhance cheque credibility. [judgement_subject][17000445120017]
Appeal dismissed; High Court correctly restored conviction and fine but not compensation under Section 357(3), as fine was imposed and circumstances did not warrant converting to imprisonment. [17000445120002][17000445120010][17000445120018]

Hon'ble RAVEENDRAN, J.—Leave granted. Heard.

2. The complainant in a complaint under section 138 of the Negotiable Instruments Act, 1881 ('Act' for short) is the appellant in this appeal by special leave. A cheque dated 31.3.1995 for Rs.20,000/- issued by the first respondent drawn in favour of the complainant, towards alleged repayment of a loan was dishonoured when presented for payment. The appellant sent a notice dated 20.4.1995 demanding payment. According to the complainant, the notice was served on the first respondent but the payment was not made. Therefore on 25.5.1995 the appellant lodged a complaint against the first respondent, under section 138 of the Act before the First Class Magistrate -IV, (Mobile), Thiruvananthapuram. After trial, the learned Magistrate by judgment dated 30.11.1996 found the accused guilty under section 138 of the Act and sentenced her to pay a fine of Rs.2000/- and in default to undergo imprisonment for one month. He also directed the accused to pay Rs.20,000/- as compensation to the complainant and in default to undergo simple imprisonment for three months.

3. The first respondent challenged the said judgment and the criminal appeal filed by her was allowed by the First Additional Sessions Judge, Thiruvananthapuram by judgment dated 26.11.2001. The conviction and sentence imposed on the first respondent was set aside and the appellant was acquitted. The first appellate court held that the accused having denied her signature in the postal acknowledgement relating to the notice dated 20.4.1995, the appellant ought to have examined the postman who served the notice; and as the appellant did not do so, the court held that the complainant had not discharged the burden to prove that the notice was duly served on the first respondent. The appellant filed criminal appeal before the High Court. The High Court allowed the appeal in part. It held that the service of notice was duly proved. As a consequence it restored the conviction entered by the learned Magistrate in reversal of the judgment of the first appellate court. However the High Court held that it could only restore the fine of Rs.2000/- imposed by the Magistrate with the default sentence but not the direction for payment of compensation under section 357(3) of the Code, as it could not co-exist with the imposition of fine. Therefore, the direction for payment of compensation was not restored. The said judgment is challenged in this appeal by special leave.

4. The appellant contends that sections 29 and 357 of the Code and section 138 of the Act should be read harmoniously and complementary to each other; and if so done, compensation could be awarded in cases under section 138 of the Act to meet the loss sustained by the dishonour and that if compensation could not be awarded for any reason, fine could be levied upto twice the cheque amount; and therefore the High Court ought to have restored the direction for payment of Rs.20,000/- to the appellant either by way of compensation under section 357(3) or from the fine under section 357(1)(b) of the Code, by increasing the fine.

5. Section 138 of the Act provided that where a cheque is dishonoured, the person drawing the cheque shall be deemed to have committed an offence and shall, without prejudice to any other provision of the Act, be punished with imprisonment for a term which may extend to one year or with fine which may extend to twice the amount of the cheque or with both. It may be mentioned that subsequent to the judgment of the learned Magistrate, the said Section 138 was amended (with effect from 6.2.2003) increasing and the period of imprisonment imposable to two years.

6. Section 357 relates to Order to pay compensation.

"357. Order to pay compensation.—(1) When a Court imposes a sentence of fine or a sentence (including a sentence of death) of which fine forms a part, the Court may, when passing judgment order the whole or any part of the fine recovered to be applied ---

(a) in defrayin

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2011 Supreme(Raj) 1015

[Citation : 2012(2) RLW 1476 (SC)](Supreme Court)R. Vijayan Vs. Baby & Anr. (Raveendran, J.)HON'BLE R.V. RAVEENDRAN, J.HON'BLE R.M. LODHA, J.R. VijayanVersusBaby & Anr.Criminal Appeal No. 1902 of 2011, decided on 11.10.2011

Cases Referred (3)

[Citation : 2012(2) RLW 1476 (SC)]
(Supreme Court)
R. Vijayan Vs. Baby & Anr. (Raveendran, J.)
HON'BLE R.V. RAVEENDRAN, J.
HON'BLE R.M. LODHA, J.
R. Vijayan
Versus
Baby & Anr.
Criminal Appeal No. 1902 of 2011, decided on 11.10.2011